ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Suit No. 1508 of 2012

Date	Order with signature of Judge

For orders on C.M.A. No.16396/2015 (If granted) :

17.11.2015 : Mr. Muhammad Qutubuzzaman, advocate for the plaintiff.

Mr. Ejaz Mubarak Khattak, advocate for the defendants.

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Urgency granted.

NADEEM AKHTAR, J. – This Suit has been filed by the plaintiff for specific performance, declaration, permanent injunction and damages. The case of the plaintiff is that defendant No.1 is the owner of the suit property ; namely, Plot No.292/I, 28^th Street, Phase VIII, Defence Housing Authority, Karachi, measuring 1,000 sq. yds. ; on 10.06.1991, defendant No.1 agreed to sell the suit property to the plaintiff in consideration of Rs.300,000.00, and received an amount of Rs.61,000.00 from him ; further payments were made by him to defendant No.1 on 24.12.1992 and 10.01.1993 ; defendant No.1 signed relevant papers in his favour such as receipts, undertaking and transfer affidavit ; the parties signed a re-sale agreement on 08.05.2010, whereby an additional amount of Rs.100,000.00 was to be paid by him to defendant No.1 ; and, despite all efforts by the plaintiff, defendant No.1 refused to complete the sale in his favour. In the above background, the plaintiff has prayed for a declaration that he is the lawful owner of the suit property ; defendant No.1 be directed to specifically perform the agreement by transferring the suit property in his favour ; the defendants be restrained from interfering in the construction raised by him on the suit property ; and, the defendants be directed to pay an amount of Rs.50,000,000.00 to him as compensation and damages.

2. Summons were issued to the defendants, which returned duly served upon defendant No.2 / DHA. As no report regarding service upon defendant No.1 had been received from the District Judge Lahore, summons were ordered to be repeated to the said defendant by the Additional Registrar (O.S.) on 12.02.2013. Record shows that summons could not be issued to defendant No.1 in compliance of the Additional Registrar’s order as the requisite process fee was not paid by the plaintiff, and due to this reason, the matter was adjourned by the Additional Registrar on four (04) occasions, that is, on 07.05.2013, 17.09.2013, 19.11.2013 and 30.01.2014. Despite repeated chances, the plaintiff failed to pay the requisite process fee on all the above four dates fixed by the Additional Registrar specifically for such purpose, and as such summons could not be issued. Not only this, the plaintiff and his counsel remained absent on all the above dates. In view of such persistent default by the plaintiff, the plaint was struck off by the Additional Registrar against defendant No.1 under Rule 128 of the Sindh Chief Court Rules (O.S.) vide order dated 30.01.2014, and an endorsement to this effect was made by him on the plaint on the same day under the said Rule.

3. When this Suit came up before me today, I inquired from the learned counsel for the plaintiff whether any application was filed or not by the plaintiff under Rule 129 of the Sindh Chief Court Rules (O.S.) for restoration of the Suit against defendant No.1. He conceded that no such application has been filed till date and stated that he and the plaintiff were not even aware of the order whereby the plaint was struck off against defendant No.1. In view of the above, the learned counsel was directed to satisfy the Court as to how the reliefs of declaration, specific performance and injunction sought in this Suit against defendant No.1 could be granted and how the Suit is maintainable. He tried to justify that the said reliefs could still be granted even though the plaint has been struck off against defendant No.1 and the plaintiff has not filed any application for its restoration. His only argument was that the plaintiff is entitled to a decree as the agreed sale consideration was paid by him to defendant No.1 long ago.

4. Rule 128 of the Sindh Chief Court Rules (O.S.) provides that process fee for issuance of summons, notice or other process and costs of advertisements “shall” be paid within seven (07) days from the date of the order directing summons, notice, process or advertisement to issue, or within such further time as may be allowed by the Registrar (O.S.) by an order in writing ; and, in default of such payment, the plaint or application “shall” be struck off by the Registrar (O.S.), who “shall” make an endorsement to that effect on the plaint or application and sign it. It is further provided in this Rule that the plaintiff or the applicant or his advocate presenting the plaint or application is expected to ascertain and “shall” be presumed to know the date of the order directing the issue of the process or advertisement. Under Rule 129 of the Sindh Chief Court Rules (O.S.), on the application filed by the plaintiff or applicant and on sufficient grounds being shown to the satisfaction of the Registrar (O.S.), a plaint or miscellaneous application struck off the file under Rule 128 ibid may be restored to the file as of the date on which it was originally filed.

5. Under Rule 128 ibid, the plaintiff and his counsel were expected to ascertain and they “shall” be presumed to know the date of the aforementioned four orders directing the issue of the process. As noted above, process fee for issuance of summons was not paid by the plaintiff despite repeated chances and in view of such persistent default by the plaintiff, the plaint was struck off by the Additional Registrar against defendant No.1 vide order dated 30.01.2014, and an endorsement to this effect was made by him on the plaint on the same day. Thus, compliance of Rule 128 ibid was duly made at the time of striking off the plaint against defendant No.1. The only remedy for the plaintiff against the above order was to file an application for restoration of the plaint against defendant No.1 by showing sufficient grounds to the satisfaction of the Additional Registrar. Admittedly, no such application was ever filed by the plaintiff with the result that the said order is still in the field.

6. The overall effect of the failure on the part of the plaintiff in getting the plaint restored against defendant No.1 is that there is no Suit or cause before this Court against defendant No.1. Therefore, the main reliefs of declaration and specific performance and the consequential reliefs of injunction and damages prayed for by the plaintiff against defendant No.1, cannot be granted. As far as the prayers made by the plaintiff against defendant No.2 / DHA are concerned, the same are meaningless and cannot be granted in the absence of defendant No.1. In view of the above, this Suit must fail. Accordingly, the Suit along with the injunction application (C.M.A. No.11756/2012) is dismissed with no order as to costs.

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J U D G E